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Judge Alsup:

"If your guy is involved in criminal activity and has to have criminal lawyers of the caliber of these two gentlemen, who are the best, well, okay they got the best. But it’s a problem I can’t solve for you. And if you think I’m going to cut you some slack because you’re looking at—your guy is looking at jail time, no. They [Waymo] are going to get the benefit of their record. And if you don’t deny it—if all you do is come in and say, “We looked for the documents and can’t find them,” then the conclusion is they got a record that shows Mr. Levandowski took it, and maybe still has it. And he’s—he’s still working for your company. And maybe that means preliminary injunction time. Maybe. I don’t know. I’m not there yet. But I’m telling you, you’re looking at a serious problem."

...

"Well, why did he take [them] then?". "He downloaded 14,000 files, he wiped clean the computer, and he took [them] with him. That's the record. He’s not denying it. You're not denying it. No one on your side is denying he has the 14,000 files. Maybe you will. But if it's going to be denied, how can he take the 5th Amendment? This is an extraordinary case. In 42 years, I've never seen a record this strong. You are up against it. And you are looking at a preliminary injunction, even if what you tell me is true."

Uber is having a very bad day when a Federal judge starts talking like that. A preliminary injunction looks likely. If Uber can't find anything, this goes against them. Nobody has denied that Levandowski copied the files. Uber paid $600 million for Otto's technology and people. Even if the files didn't make it to Uber's computers, Waymo can probably get a preliminary injunction shutting down much of Uber's self-driving effort. Then Uber gets to argue that their technology is different from Waymo's. It's going to be hard to argue independent invention when all the people are from Google's project.

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For those who don't recognize the name, this is the same judge that learned some Java for the Oracle v. Google case (and has an undergrad degree in mathematics). Every time I read his name I know it's going to be a fun ride and the lawyers will not be able to get away with anywhere near as much shenanigans as they usually do. Although his ruling regarding API copyright in the Google case was overturned, he has a really strong record of making judgments that stand the test of appeals.

I vote Alsup for Ginsberg's seat.

His middle name is Haskell :p

- https://en.wikipedia.org/wiki/William_Haskell_Alsup

I was about to comment this. You don't mess around with this highly functional a judge ;-)

He wanted to bring purity to the US justice system.

I wish his behavior led to some side effects on the justice system.

The courts are actually pretty first-class. Take a look at the transcript posted elsewhere in this thread for a reference to the transparency of the system, and how this judge is defending it. Supreme Court cases also make for pretty fun reading sometimes, and there's no denying that judges tend to be extremely smart and conscientious.

He's definitely the kind of judge who is able to avoid all kinds of procedural problems which are typically an issue in this type of justice system.

Strictly typed, lazy evaluator?

Unrelated but I heard that after a fair bit of therapy he was able to get rid of his childhood lisp too?

That... is actually quite a cool name.

I'm not sure if you mean the judge's entire name or the name 'Haskell', but just in case you didn't know: Haskell (the language), as well as the functional concept of currying were both named after a mathematician called Haskell Curry :)

https://en.wikipedia.org/wiki/Haskell_Curry

> both named after a mathematician called Haskell Curry

... who, purportedly, hated his name :-P

Dude he learned Java for a court case? My respect for this man grows immense. What a G.

I wish more people were like this "I need some more domain-knowledge to understand what's at stake? no problem, let me do some learning." Excellent attitude.

Continue to be impressed: https://assets.documentcloud.org/documents/3524990/Gov-Uscou... https://assets.documentcloud.org/documents/3524989/d99f25c8-...

> The judge is interested in learning the basic technology and learning publicly known art. This would be a good opportunity for a young lawyer to present in court.

How thoughtful to promote young lawyers like that! Nice judge.

Interesting to note from the pdf titles that they use Wordperfect. I didn't even know it still existed.

Word Perfect is used for many court cases because it is the only WYSIWYG word processor that paginates footnotes according to the US legal rules. In fact, it had a lock on the DoJ market for ages (and maybe still does) based solely on that. Word could never accommodate it because it breaks backwards compatibility (and whatever you say about MS's shady past, this is something that they stuck to even though it cost them a fair amount). I worked on WP when Corel first acquired it...

I don't know where this guy stands on the political spectrum, but I know that I respect the crap out of him. He's got my support!

Ideally, his political leanings are not involved in his judicial decisions.

For whatever it's worth he clerked for the FDR-appointed justice https://en.wikipedia.org/wiki/William_O._Douglas, was in the US Dept. of Justice under Carter and Reagan, was appointed to the federal court by Clinton, and is a registered Democrat.

We need more judges outside of the D.C. circuit. Technology knowledge is SORELY lacking among the current crop, for that reason alone we need a voice like his.

> don't know where this guy stands on the political spectrum

(N/W-European here) Is that really a thing that US citizens pay attention to?

Judges are supposed to be non-partisan, but in reality a small number of decisions come down to what basically amounts to personal preference. There are sometimes laws and decisions supporting both sides of the argument and the judge is allowed to pick, as long as they can back it up with prior rulings or laws supporting their decision. Once the judge picks, that sets a precedent for future judges to rule the same way since judges tend to value a stable set of rulings and rarely overturn previous decisions (after all the appeals are settled out, of course) unless something major has changed since then.

So if a particular ruling comes down to personal preference and a judge personally leans conservative, they'll likely rule in a conservative fashion on those small number of cases. If they lean liberal, they'll likely rule in a liberal fashion. You often see this in Supreme Court decisions where the justices are split along political lines, with the conservative justices ruling for the conservative side of the argument and the liberal justices ruling for the liberal side.

That being said, the political stance of most lower judges doesn't matter as they have little impact on case law and few opportunities to make political decisions in their job.

You have to :(

I like this little jab at Otto:

" If his truck driving company gets shut down because of theft of trade secrets on a record that he's not willing to deny, too bad for him. Too bad."

Indeed he's the judge Judy of tech IP trials. The java one was the first I'd ever bothered following on a regular basis, very entertaining.

Judge Judy isn't even an actual judge, so I certainly hope he isn't the judge judy of tech IP trials.

Judge Judy was a New York judge from 1982–1996, starting as a criminal court judge and then promoted to supervising family court judge in Manhattan, until her retirement (followed by tv show).

Isn't she? Things I learn :-/

Those shows are pretty interesting. The judges aren't real judges (though most of them were judges in the past). You might wonder, as I did, why on earth defendants who are often obviously in the wrong, would agree to go on the show. The way they often work is if the plaintiff wins their judgement fee is paid by the producers of the show (not the defendant). If the defendant wins both parties receive an appearance fee. It's a binding arbitration as well so going on the show is a great deal for the defendant because there is no financial repercussions to them, it may get them out of a potential judgement in a real civil court, and they might even make some money. All it costs them is potentially looking like an idiot on national television.

Judge Caprio disagrees.

https://www.youtube.com/channel/UC59KhIPOR0Jj653dC4laEJw

He's a real, acting municipal judge (unlike the daytime television judge shows I'm talking about).

Edit: I'd like to add that the Crimetown podcast about Providence, Rhode Island is fantastic.

Thanks a lot for explaining that. I always wondered in the back of my mind how it actually fit into the legal system. Now I know it doesn't at all! But, I'm glad the participants at least have some fiscal benefit in the end

This is a judge that I respect. He should be on the Supreme Court.

In the USA do judges get assigned to cases because of their prior demonstrated ability to grasp a particular industry - or is this just a coincidence?

It's often by self-selected committee. All the judges (or their aides) get in a room and they divvy up the cases among themselves. There is often some other things that effect that too (like "on call" judges who handle various time sensitive proceedings, or agreed upon ways to split up cases nobody wants).

So judges can be assigned cases they are interested in or suited for through that system.

Wow, I never realized that. In Germany judges must be selected "in abstract" beforehand, so that when a case is filed the judge is already determined.

And the court's secretary must under no circumstances tell anyone who is next in rotation (most courts use some sort of modified rotational system), not even the judges!

Any deviation would make certain that revision would be granted.

Can we not get ahead of things here? Maybe put him in Scalia's seat before we worry about Ginsberg? :)

How is Uber supposed to prove that they don't have the files? I'm asking purely from a legal / process perspective - would they have to turn over all their data to discovery, or something? If they legitimately don't have the files, how could they satisfy the judge? Or is it not possible that they don't have the files? What if Levandowski has the files on his home computer or something but they never touched Uber's system?

(IANAL)

Imagine this was a criminal case where person A is charged with hiring person B to kill person C. Exhibit A is a forum post made by person A asking someone to assassinate person C for $15,000, exhibit B is a $15,000 check from person A to person B, and exhibit C is the gun used to kill person C, legally purchased by person A a few months ago and left at the scene of the crime with person B's fingerprints on it. When called to testify in the trial, person B just claims the 5th amendment and contributes zero evidence either way to the trial. How do you prove that person A didn't hire person B to kill person C? That is easily enough evidence to satisfy a jury's "reasonable doubt" so how can you get out of such a predicament?

That's how bad it is for Uber. The above example is a no-win scenario for person A unless you can convince the jury that the check or the gun were planted by the police (or were otherwise fabricated evidence). Uber can't do that because Google's case is so strong and no one is able to deny the theft of all the files.

This is a civil case, so Waymo's burden isn't "reasonable doubt", it's "preponderance of the evidence". In other words: is it more likely than not that Otto stole their tech from Waymo?

This is a much easier bar to clear as a plaintiff. It's the defense's job to make the case that it's more likely than not that they didn't do whatever they're accused of doing.

In this case specifically, one side has extensive computer records that strongly suggest wrongdoing, and the other side hasn't yet produced any evidence -- or even any statements -- contradicting that. Good luck, guys.

Without knowing the law, it seems like Uber could construct a viable legal defence around admitting that they inappropriately got access to these files, while simultaneously arguing that they should not face an injunction blocking work on self-driving technology, because the current technology they're developing differs significantly enough from the proprietary tech Google is trying to claim ownership over.

But it's kinda telling that they are _not_ doing that, isn't it? Just shows how badly Uber screwed up and how Waymo's evidence of theft cannot be so easily dismissed.

> Without knowing the law

The most important four words here.

Would love to be told why the law says this defence wouldn't work.

   > What if Levandowski has the files on his home 
   > computer or something but they never touched Uber's 
   > system?

One of the things that surprised me about Google's employee agreement was that by signing it, the employee gives permission to Google to search any and all digital devices associated with the employee whether or not they are owned by Google. When I asked an employment lawyer about it he suggested it was fairly boilerplate (if a bit extreme) and designed to combat situations exactly like this, party A sues the employer based on behavior of employee B who may have been doing nefarious things 'off book'.

So in this case Uber presumably has a similar clause in their employment agreement and are searching relevant employees devices for evidence of the files.

Yikes. Most jurisdictions I've worked a clause like that would be entirely unenforcable.

In Norway, employer even have only limited rights to access things like your employer owned devices if they are personal to you, on the basis that it would be an invasion of privacy unless a lot of steps have been taken to prevent you from accessing or storing personal information on it.

Though in a case like this where they have evidence that implies wrongdoing, that would be sufficient to search equipment the employer owns or have financed. The barrier for searching private equipment is massively higher, though, and would normally require going to court.

Personally I'd never consider working for anyone that demanded a clause like what you outlined. I understand their liability concerns, but the at the same time if they won't trust me, then I can't trust them.

Similar in Finland. Employer isn't allowed to manually track any identifying data (such as IP addresses or e-mail recipients) in their own corporate networks, let alone the actual contents. In case of suspected wrongdoing, automatically collected logs can be handed over to the police for investigation.

Coming from this background the extremely lax privacy protections guaranteed for US based services are always somewhat creepy.

I have read employment agreements in full for all jobs I have ever taken as well as read few of other people who have consulted me about such agreements. I have also read two books on IP laws and researched enough online. I do not think this clause is boilerplate.

On the other hand, whenever someone questions these lawyers about such clauses, they always tell you, ha, this is completely normal, it's boilerplate.

How are they going to do this? Can they enter his house and then search his computer and disks? Take anything and ask for his password to decrypt them? If they simply ask him, and he wouldn't want them to find these files, he could delete them or put them on an encrypted stick that they don't know about.

How does this work???

It works the same as any other contract works. You ask the other party to fulfill their obligations according to the contract they signed -- in this case, submitting their systems for review. If they refuse, then you take them to court for breach of contract.

You can give up many of your constitutional rights to other people or corporations. Like privacy. They could ask him for a password and he would either tell them or be fired.

Though not all Google employees sign this, just the Project X experimental ones.

> What if Levandowski has the files on his home computer

As part of discovery, Uber searched personal computers of some employees (ones who weren't, to be sure, asserting the Fifth.)

It's kind of their problem if their own executive most central to the case won't let them do that; that's Judge Alsup's point.

I have a friend who went through something like this. First off, depending upon the nature of the exact charges there are situations where if it appears you lied or hid or intentionally destroyed evidence the court can find against you and just assume the worst when punishing. So there is a reason to be honest.

Second, if the plaintiff desires it, they can sue you and your employer both. Name you both in the same suit. It binds you together and drives you apart at the same time. Let the law suit hang for a while and many people would want to just quit and try to settle, your employer could end up suing you in that case, especially if you doing that damages or appears to damage them. Maybe worse, say the company has the data somewhere and you destroyed your computer to prevent searching, you look like a total liar.

How it works is a trusted forensics guy that you hire, he copies all of your stuff. The lawyers hash out some agreements, your lawyers protect your interests but it's a discovery process that they are agreeing on. Think of it as search terms, they come up with some number of search terms related to the charges. Your lawyers are trying to protect your rights and limit the searches to what is alleged. its not supposed to be fishing. It's a game of sorts though, like a number of terms will be agreed to and then your lawyers want the other guys to waste them on bad searches. Then you pay your guy to search your data and report the findings to the court. He says he found x files with their copyright or that it looks like you formatted your drive the day after you got served or other things. And it's evidence in the case.

https://en.wikipedia.org/wiki/Adverse_inference

Levandowski is asserting his right to remain silent and right now that is sinking Ubers ability to fight any preliminary injunction, given he is working in the exact leading capacity at Uber that these files pertain.

I've got to assume that not helping your employer's defense in a case like this has got to be a fire-able offense. Then at least Uber could sue him too in order to claim some degree of innocence. (Not that it would necessarily work - I doubt it would, but it's got to be a better strategy than this one).

And the judge even suggests as much - Uber could order him to testify (in the civil suit with Uber as defendant) or fire him if he refuses. But he continues working there today.

Though it is difficult to imagine what he is going to say to counteract the very strong impression of some cloak and dagger data theft. And even if against all odds he comes up with some believable story, it's not like Waymo need him to make their case. IIRC, the start of this whole case was some board manufacturing house sending Waymo an Uber design that looked very much like their own. So the moment they move into expert testimony on the similarity of the two product designs Uber is going to be royally screwed.

IANAL. However, some thoughts for your consideration: California is an at-will state and this doesn't matter. Walking into your employer's office is a fireable offence in California.

So yes, he can be fired for this. What that would achieve, other than looking like an admission of guilt (ironically this may guarantee his continued employment at Uber unless they are prepared to give up their self-driving car department entirely to this case. He may be very sure about his position until this case - and all the appeals that follow are entirely done. After that, yeah he'll be fired. That's a decade from now).

Frankly I do believe that the odds are good that Mr. Levandowski has in fact hired a lawyer, and has decided that the would rather use the protections the criminal justice system offers him personally rather than risking $600 million (or more) and jail time.

The problem is that anything used in a court case becomes part of the public record and can be used in other court cases, including the separate criminal case against Mr. Levandowski.

So may I ask, if your lawyer told you that. You own, let's say $700 million. You could either maximally defend your employer, and through that risk 85%-90% of your net worth and jail time, or you could maximally defend yourself and create as high a burden as possible for Google/Waymo to achieve anything against you personally.

If his contract either with Uber or Google conflicts with this, I believe (without research) that it does not matter : a contract does not have the necessary weight to override constitutional amendments unless explicitly permitted in the relevant amendment. Google has filed a police complaint, thereby offering this option to Mr. Levandowski, and there's no backing out now.

I believe any good lawyer would tell Mr. Levandowski to do this. For very, very good reasons.

You're absolutely right about the motivations from the Levandowski side. He certainly has his own lawyers giving him advice, and some of it is clearly aimed at protecting himself from potential future criminal charges.

But that doesn't mean that his legal strategy jibes well with Uber's strategy. Uber and Levandowski are joined at this hip in this case, but they have different fears and motivations. I just wonder if Uber would have a better chance if they parted ways with Levandowski and turned this into a three-way conflict. There have clearly been some differences in legal strategy between Levandowski and Uber.

His primary concern should be his own future and well being. At the same time, from Uber's perspective, if a key employee is refusing to help your defense by withholding information (something he is legally allowed to do), then the only leverage you have over them may be their position in the company.

From what I gather the judge is only saying that things look very bad for Uber/their employee as it is. So he's basically telling them "Help me out here, and show us the evidence so we can see for ourselves if things are as bad as Google is showing them to be. Otherwise we just have Google's evidence to go on, and it's looking very bad for you!"

That's not really the issue. The issue is whether the judge is going to impute Levandowski's failure to cooperate to Uber.

From the transcript:

MR. GONZÁLEZ (Uber's lawyer): So, Your Honor, first of all, we have searched and we are in the process of searching all of our computers for the sorts of information that you referred to. And if we find those documents, we intend to produce those. In addition, Your Honor, we are searching Uber's computer that was assigned to all three of the people that are mentioned in the complaint. We are searching all of their individual Uber computers.

We're really here to talk about two things that are related. One is, anything that Mr. Levandowski may or may not have on his own -- let's just assume hypothetically that he's got something at home -- that is not something we have access to. And I just want to be forthright and tell you that. But the issue here is whether any of the stuff is at Uber. And we are searching for that.

THE COURT: Uber has the authority to say to its employees, "If you have anything at home you bring it in here, give it to Mr. González, and he will turn it over to the Court."

You have the authority to do that. And you also have the authority to say, "And if you don't do that, you're fired."

...

THE COURT: This is not a discovery thing. And if he doesn't testify to that at the deposition, well, I guess Uber -- you know, Uber is -- if you think this is going to help you, my preliminary view of it is it's not going to help you; and that if there's not a clear-cut path to showing that those 14,000 documents weren't used, then you're looking at a preliminary injunction.

On the other hand, maybe you can convince me that those 14,000 documents somehow none of them were used. Okay. That's a possibility. That has occurred to me that that's true. I just don't know. I don't know. But if Mr. Levandowski is unwilling to say -- hey, listen, I read in the newspaper that he said he did it so that he could do work at home. That's what I read in the newspaper. I don't know. So, look, if he's not willing to come clean, then that looks bad in a civil lawsuit. In a civil lawsuit.

Now, for criminal purposes, okay, maybe he's got the right to take the Fifth Amendment. But for civil purposes, there's a thing called adverse inferences.

MS. DUNN (Uber's other lawyer): I think one point we want to reinforce -- this actually sounds a lot like what Your Honor is saying -- is that if Your Honor is in the situation where he must draw an adverse inference against Mr. Levandowski, we would ask you to keep open the possibility in your mind that the adverse inference should not be drawn against Uber, which is a separate party. And it is our responsibility to come in and show to you that we have not used this and that we're differently situated.

So in that respect we agree.

THE COURT: Okay. I will say this: I'm not going to prejudge the issue without seeing what your record is. And it's conceivable, it's conceivable that that would fly. But it's also conceivable that I would draw the adverse inference against the employer who has the guy, who's taking the Fifth Amendment, who runs the company. To me that is a -- I don't know. I don't know what I would do.

Sounds like he is. The guy still runs the part of Uber's company that is under question here. They could fire him, but they have not. They want their cake - not being penalized for his adverse inference - while eating it too - letting him run the part of the company that is in question. And they have not denied that he took the files in question. With no one disputing it Google's claim stands and that alone, with or without adverse inference, might be enough for the prelim injunction.

Which says a lot about the company. In most industries, stealing from your former employer would get you fired immediately. Especially if it draws the company itself in a lawsuit. Usually the first action is to suspend the employee and cut all access to demonstrate that you don't support the behaviour. The way Uber acts looks a lot like they want to profit from the stolen files.

> stealing from your former employer would get you fired immediately

Since that would pretty much be an admission of guilt, you leave out an important detail here. This will only happen if your new employer both believes you did it, and that they will lose the case and get an unacceptable penalty imposed on them as a result.

If they intend to defend themselves, the behavior would be reversed : Legal would strongly object to your firing (or quitting) until the case is over, including all appeals and the terms for any further appeals are over and done with.

Or at least for Google to say, in effect, "fire the guy, or we'll get a preliminary injunction".

Is there any issue with judges reading newspaper articles about cases they're in? I know that jury members aren't supposed to, are judges fine?

Yes. Judges have extreme latitude in what they consider and how they run a trial. Consider the recent case in Hawaii ruling on the travel ban. Quote: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."

(The reference is to the President's statements before and after the election)

Many seem to be surprised reading this transcript. Yet the tone this judge is using isn't anything special. You can see that he takes extreme care not to disadvantage one side, without pretending to be some sort of soulless automaton.

There's a difference between considering details that have been entered into the record by the parties, and saying "oh I saw X in the newspaper". I assume in that case the plaintiff took the President's statements and put it in their filings.

But the judge wasn't using the newspaper report as part of his consideration. He was just offering it up as something that the defendant should be willing put into the court record (instead of taking the Fifth). The fact that it appeared in a paper is, OTOH, clear-as-day evidence that stuff is not being shown to the court, which he's saying has some value as a datapoint on its own (irrespective of the content).

Jury members, to be poignant about it, are not trusted to be objective. They are peers of the defendant. Historically they were the proletariat, and hence uneducated, base, and instinctive.

Judges are supposed to be people who can be trusted to be objective. They are chosen (or, before they were elected, and politics became divisive) for their trustworthiness and objective scholarship. Historically they were well educated, of a higher class, perceived to be of a higher moral character.

The point is judges are expected to be mostly objective, and use external information responsibly.

> Uber has the authority to say to its employees, "If you have anything at home you bring it in here, give it to Mr. González, and he will turn it over to the Court."

So Uber says that to Levandowski, and he says "Sure, I'm an obedient employee, I'll give you the file if I have it. I don't have the file." Lying under oath is punishable by law (hence taking the 5th), but lying to your employer is (AFAIK) not.

Now if the judge is satisfied with that, then fair enough, but I doubt he would be. If he wants Uber to require that Levandowski not take the 5th as a condition of further employment he should just say so.

> Uber has the authority to say to its employees, "If you have anything at home you bring it in here

Wait, what? In the opinion of the court, a company has the authority to demand that their employee hands over the contents of his personal computer? That doesn't sound right... please, somebody tell me the US judicial system isn't that retarded!

> In the opinion of the court, a company has the authority to demand that their employee hands over the contents of his personal computer?

This is absolutely the case with at-will employment, and maybe even with an executive or officer directly involved in a case even without that (and an executive likely has a contract that puts them under something other than simple at-will terms.)

> That doesn't sound right... please, somebody tell me the US judicial system isn't that retarded!

If you don't like the law, that doesn't make the judiciary retarded for correctly explaining it.

To me it sounds like you are saying no, an employer cannot compel you to give them your personal information, but that they can terminate your employment if you refuse to hand it over

is that what you meant? I think 08-15's concern was more along the lines of an employer having the ability to demand someone to give up their personal information without their consent.

A company cannot make you give them any personal information without your consent. They can of course fire you for not doing so.

That of course is only valid in a few countries. In most European countries, firing someone for that would immediately be overturned by a court.

Considering this is an American federal court case between two American companies, concerning an American employee, for actions in America, I don't think "Yes but in Europe..." is relevant.

Obviously there are limits on what a company can ask its employees to do. I don't think a company would get very far if it required employees to bring in nude photos or dress up in blackface or something.

But in this case these are files that are related to the day job, and are materially impacting the business. Seems like they would be on solid ground conditioning further employment on furnishing the files.

..."And if you don't do that, you're fired."

I am guessing they do have the ability to fire on those grounds.

Why would they not have the authority to do that?

If they want, your employer could demand that you wear pink underwear of a particular brand at all times when in the building and fire you if you did not.

That is a very american perspective though. In Germany you are not allowed to fire someone for these reasons (you might be able to dismiss him for no reason at all but the contract will not be over for quite a long time) So the authority of a company firing somebody over not handing over their laptop can be reasonably questioned.

> That is a very american perspective though.

Yes, and this case is between American parties, under American law, in the U.S. (of America) District Court for the Northern District of California.

I'm aware of that and just wanted to point out why this american perspective can be questioned, which was -in my opinion- the intend of "08-15".

As long as it's not discrimination based, you can fire someone for any reason.

My boss could fire me for disliking the color of my T-Shirt this morning.

> As long as it's not discrimination based, you can fire someone for any reason.

Every decision to choose one course of action over another is "discrimination-based"; you mean as long as it is not discrimination on an expressly-prohibited basis.

That depends a lot on jurisdiction. It's not even true for every job/state combination in the US.

But what are Germany's laws about discovery? This seems like a problem that would have occurred even before computers: if an executive is handwriting letters at home to engage in illegal activity for the benefit of their company, does a German court have authority to search the home?

This is an American case, and it's being litigated in accordance with American law, so the judge is using American rules about employment to achieve the goal here. I would be surprised if there weren't some way to accomplish the same goal in Germany.

The comment you're replying to wasn't meant as a comment on the case, but to rebut the idea that "at-will employment" is some sort of universally-valid, natural state. It's just one of many possible answers, and every society has come up with their own.

Regarding discovery, I must say that the US system is actually more advanced than Germany, where, in civil law, there isn't really a doctrine for recovering incriminating evidence (or otherwise compelling evidence) from the opposite side, apart from a few specific circumstances.

I'm not convinced "at-will" employment extends this far, especially in California. There are still protections against being fired for reasons unrelated to your job.

You forgot the rest of it:

> And you also have the authority to say, "And if you don't do that, you're fired."

http://www.weil.com/~/media/files/pdfs/subpoenas-using-subpo...

They have evidence that he stole documents from a competitor. Asking him to prove he doesn't have any of those documents or be fired seems perfectly reasonable.

It's part of the standard employment contract, as a nuclear option that's only invoked in cases like this.

Basically, if the employee refuses and the company fires the employee, the company can shield itself from liability by cutting ties with the employee and telling the court that they had no idea what the employee was up to and didn't condone it at all.

I mean, can't it? California is an "at-will" employment state, right? They could presumably fire an employee for refusing to straight up burn their own house down.

That's what we call a "fired if you do, fired if you don't" kind of situation.

That would constitute arson, and arson is a crime. It's not legal to procure criminal behavior, whether by an employment contract or by other coercive means.

Technically, arson is burning down someone else's property. It's not a criminal offence to burn down a house you own, though it is likely a non-criminal fire code violation.

I don't think that's right. For example, in the California Penal Code,

"A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property." [1]

The incendiary's ownership or not of the property doesn't matter.

[1] https://leginfo.legislature.ca.gov/faces/codes_displaySectio....

From your link:

  For purposes of this paragraph, arson of property does
  not include one burning or causing to be burned his or
  her own personal property unless there is an intent to
  defraud or there is injury to another person or another
  person’s structure, forest land, or property.

Thank you - I agree it turns on mens rea. Burning one's own property can be criminal arson, depending on intent or result.

Just as you'd expect. Whether the property in question are books you own, or a shed, or your entire house it's your property and it's not a crime to turn your property into a bonfire so long as doing so doesn't break other criminal laws.

As that would be arson I have some doubts it goes that far. It would be a very interesting whistleblowing case I suspect.

But the whistleblowing would be for "trying to force an employee to commit arson", not for firing them.

It doesn't seem to be that simple in most US jurisdictions: https://en.wikipedia.org/wiki/At-will_employment#Public_poli...

As an aside, it's striking how poorly someone can come off when their conversational speech is quoted verbatim. A lot of cutting and some paraphrasing goes on when publishing interviews to avoid this. Doesn't appear to be an issue in this discussion, but if a clearly intelligent judge can come off as somewhat dithering on reading a transcript, it's a good reminder to give others the benefit of the doubt when they're quoted verbatim.*

*I'm experiencing a bit of Baader Meinhof here. Just today I learned of something called the conversational Trump Trench. Basically the idea is that these days almost any conversation will end up sliding into being about Trump, or being perceived to be about Trump. So I feel the need to say I didn't have him in mind when I started writing this, and I don't personally support Trump. But even when reading Trump quotes, probably still worth keeping this in mind.

For your first few transcripts, it will stick out at you. After you've read a few transcripts from nervous people giving a deposition, you'll see what dithering properly looks like. You'll also begin to see that overly fluid long pieces of prose in back-and-forth discussion aren't natural - they indicate an individual has rehearsed their statement.

In this case, almost every person in that room was top-in-class quality. Not a single argument point was misstated by counsel and Judge Alsup's position was carefully crafted so as to be defensible upon appeal, while also being no-nonsense and get across the gravity of the situation to Uber counsel.

I hate to piggyback on the top comment, but could somebody explain the 5th Amendment and its implications here.

I'm not a lawyer, nor am I from the USA. I've heard of the fifth, but never fully understood it in scenarios like this.

When you are being questioned by authorities, even if you are 100% clear/not guilty in the matter the simple fact of the matter is that it is very unlikely that you will be 100% accurate in your testimony to the authorities. Little details (even when correct) can be twisted by the authorities who have an incentive to get a conviction. So the fifth amendment was created to give legal protection to individuals who do not wish to testify or talk with authorities themselves and allow them to utilize an impartial 3rd party lawyer to manage the conversation flow.

A jury in a criminal case is not supposed to hold any weight to someone taking a fifth amendment plea to not talk (since it's a provision really meant to protect the innocent) but with human nature that's unfortunately not the case.

However, since this is a civil case I don't know if the legal system has to be neutral in a Fifth amendment plea. If not that would help Waymo's case, especially since Waymo does have evidence that he downloaded these documents. So Him taking the fifth is just to make sure he doesn't do anything himself that will spawn a criminal conviction later.

(IANAL)

The judge specifically says that the 5th is only valid in criminal cases and leads to adverse inference in a civil case like this. Meaning the judge is very well able to assume that files ended up at Uber if they don't show enough effort to produce proof. So the fact that the employee uses the 5th hurts Uber significantly in this case.

The 5th covers several rights of a person accused of a crime. In this context they are referring to the amendment's protection against self incrimination: "nor shall be compelled in any criminal case to be a witness against himself."

A person has the right to decline to answer questions if they believe that their answers could be used against them as evidence of a criminal act. This particular proceeding is civil rather than criminal so its outcome can't result in any criminal convictions. However, if he were later to be charged with a crime and tried in a criminal court any testimony he gave in this civil action could be used against him as evidence in the criminal trial.

> all the people are from Google's project.

Didn't they earlier hire away CMU's self-driving car folks?

Fascinating. Where can we read more of these transcripts?

The Supreme Court has some pretty good writing. Or judge Posner.

Source?

Is it normal or appropriate for a judge to make assumptions about a defendant's guilt based on the lawyers they hire to represent them?

It's not normal or appropriate for a judge to include that in his judgment. I don't think he brings up the lawyers to show that he seems guilty, but to show that he definitely is taking this seriously. Plaintiff has really good evidence, suspect has lawyered up in a BIG way, and the defendant is just kind of doing nothing. Whether he's guilty or not, I think the judge is trying to point out to them that this is a major case and they're the only ones not acting like it.

A court can draw adverse inference based on defendant's actions. So yes the judge can say that, but you'll note he says "we're not there yet, I don't know." and words to that effect. He is warning them that this doesn't look good for you but I haven't made up my mind so don't take this as judgment.

The case is not at trial yet. They're still in discovery and coming up on a possible preliminary injunction. Evidence is coming in and going on record, but it's not evaluated at this stage. That's why the judge makes remarks like "we're not there yet".

This is a hearing for a preliminary injunction. It comes before the actual trial. So we're pretty close to "there", for the purposes of the injunction. The idea is you stop the (possibly) bad behaviour based on the evidence at hand, to prevent long term damage while the trial winds its way through the courts.

Levandowski isn't a defendant in this case, Uber is. By all accounts he could tell them to fuck off, and he pretty much does that if you read the transcript.

It's an absurd position to take. Maybe he picked his lawyers based on quality of the lawyers he'd be facing. I've met some of Google's lawyers, and if I were being sued by them, I'd get the best damn lawyers my money could buy.

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